Two Strange Orders in the Wikileaks Case

Federal District Court Judge Jeffrey S. White of the Northern District of California has issued a pair of (unprecedented?) ex parte orders in a case brought by Bank Julius Bear against Wikileaks.org. Because there are two separate orders, much of the early reporting was a bit confused — indeed I got confused, which is why I'm posting this substantially amended post and taking down my older, not-very-accurate posting.

One order requires an ISP, Dynadot, to take down all DNS records pertaining to the wikileaks.org site.

“Dynadot shall immediately clear and remove all DNS hosting records for the wikileaks.org domain name and prevent the domain name from resolving to the wikileaks.org website or any other website or server other than a blank park page, until further order of this Court.”

I presume Dynadot was their registrar as this had the effect of making the wikileaks.org domain inoperative. (The only vaguely similar case I know of is when wab.com was surrendered to the feds as part of a plea deal in a criminal federal copyright infringement case — but as the government isn't the plaintiff here that's not very similar.)

This isn't a classic prior restraint on speech since it reaches the registrar not the speaker — but it's close enough to stopping the delivery trucks on a newspaper that I think this aspect of the decision is a cause for some First Amendment concern. The IP numbers for the site still work, though. Try 88.80.13.160.

The second order is a much broader gag order [corrected link] that enjoins everyone sued by the plaintiffs — wikileaks, everyone connected by the parties, ten John Does, their ISP, lawyers, and anyone working “in concert” with them, and “all others who receive notice of this order” (!) and orders them not to do any of the following,

displaying, posting, publishing, distributing, linking to and/or otherwise providing any information for the access or other dissemination of copies and/or images of the JB Property … and any information or data contained therein, including on [listed websites or other websites they control]

Leaving aside the sweep of the order — on what theory does this court have jurisdiction of everyone who learns of the order? — this seems like a classic prior restraint and is thus presumptively unconstitutional. Whether any of the very limited exceptions might apply is hard to tell from the documents available, but I'm pretty skeptical. Assuming that the information was in fact stolen, one has to admit that the case law relating to the retention of stolen documents is confusing: on the one hand the law clearly allows the owner to demand their return. On the other hand, as far as I know, the very strong presumption against prior restraints on publication has not been overcome as regards to parties who receive the information from a person other than the thief. Note, however, that even after the Progressive case, the law on prior restraint is only that it is a very very very high bar — not foreclosed utterly.

The orders in this case came in the context of an ex parte hearing on a preliminary and emergency injunctive request from Bank Julius Baer of Switzerland which alleges that wikileaks is publishing secret bank information.

21 Responses to Two Strange Orders in the Wikileaks Case

“on what theory does this court have jurisdiction of everyone who learns of the order?”

On the grounds that the court has the common-law authority, codified at FRCP 65(d), to enforce its orders against anyone who is aiding a person enjoined to violate the court’s order.

This is a little broader than the usual run of the mill case, but check out U.S. v. Barnette (11th Cir. Nos. 95-3591, 95-3616, especially footnote 10) and the case Barnette cites, Waffenschmidt v. MacKay, 763 F.2d 711, 714-17 (5th Cir.1985). As Barnette puts it, “[n]onparties that actively aid and abet a party in violating a court order may be held in contempt of court.” Waffenschmidt does more explanation. There are other cases in accord.

Generally speaking, the “aiding and abetting” means “violating the order with knowledge and some piece of evidence that the violation was intentional.”

Let the record show that I am not “wcw” and I consider his link to be a communication covered by section 230 of the CDA. But I’m not sure the 7th circuit would agree. One of the rare times I’m happy not to be in Chicago, my favorite American city.

Only if it violates fundamental fairness. Knowingly aiding another in violating the N.D. Cal’s order is showing contempt for the N.D. Cal court, and therefore a sufficient minimum contact, IMO, to enforce a judgment. Going back to the Waffenschmidt case for a moment (the opening 2 sentences):

“Nonparties who reside outside the territorial jurisdiction of a district court may be subject to that court’s jurisdiction if, with actual notice of the court’s order, they actively aid and abet a party in violating that order. This is so despite the absence of other contacts with the forum.” (emphasis added).

First, a minor detail: I think your citation to Leman is inapposite: the defendant in that case was the named party in the original order. Of course that order follows him around the country. That doesn’t tell us about orders to third parties. But the court of appeals cases you cite do that.

As regards the third parties, the issues are (1) whether there’s a source of jurisdiction that is national, ie a statute; (2) if not whether the aiding another is the minimum contact – and it could be; (3) whether acting separately is “aiding another” (it probably isn’t); (4) when any of this applies abroad.

I get the argument in Waffenschmidt: all that matters is whether D2 acted ‘in concert’ with D1 with the intent (or post-notice negligence) to thwart a court order; assuming the decision is right, the question remains what it means to “act in concert” — a concept that arises out of “privity”. Is mirroring a site “acting in concert”? Linking to it? That’s awful broad — much broader reach than those cases have in mind. And that’s especially suspect when we get into an infringement of speech.

It looks like a strange pair of rulings by a judge who didn’t understand or think about the consequences.

The ‘permanent’ order seems to be predicated on the notion that Dynadot can come to an agreement with the plaintiff and the owner of the domain name has no rights in the matter.

One explanation is that he looked at Wikileaks and decided that its an organization with explicitly criminal intent, thus having no rights, not even to having a hearing. This is not ‘prior restraint’ of an article, its equivalent to shutting down the whole newspaper on the basis of a single article.

Well maybe you might see a decision of this type come out at the end of the process, maybe you even come out with a decision that says that people who set up deliberately unaccountable Web sites like Wikileaks can be shut down without a hearing. But for one judge to do so without any form of adversarial process strikes me as a massively impudent approach.

We don’t have this type of recourse available when we are dealing with out and out criminals. And this judge thinks we should use prior restraint to suppress what is purportedly evidence of seriously corrupt activities ex-parte.

One of the sadder consequences of the Bush years is going to be the ongoing consequences of the politicization of the justice department for years to come. If your first concern when appointing a judge is to find a party hack you are going to end up with a lot of seriously incompetent judges.

“I think your citation to Leman is inapposite: the defendant in that case was the named party in the original order. Of course that order follows him around the country.”

I don’t think it is an obvious point that an injunction has nationwide scope when issued by a geographically limited court, but if you’re willing to concede it I’m ok with that.

“As regards the third parties, the issues are (1) whether there’s a source of jurisdiction that is national, ie a statute; (2) if not whether the aiding another is the minimum contact – and it could be; (3) whether acting separately is “aiding another” (it probably isn’t); (4) when any of this applies abroad.”

Re: 1) I’m assuming that the preliminary injunction is done pursuant to some statute that would allow permanent injunctive relief, and I’m guessing the Lanham Act is most likely (this appears to be a tort action, as opposed to a copyright or similar, but I haven’t seen the actual complaint). So the combination of injunctive relief authorized by federal statue and the authorization under FRCP 65(d) and the Rules Enabling Act to extend injunctions to those in privity (including knowingly aiding and abetting) with the enjoined would be the jurisdictional source.

Re: 2) This could go either way. I admit it’s a key issue.

Re: 3) I find it hard to imagine how acting separately to knowingly violate the court’s order *while complaining about how stupid the court’s order is and how easily it is to violate it* would not show an intent to aid and abet the violation of the courts earlier. I further admit this would need to be individually litigated.

Re: 4) Considering the general willingness of the United States to export domestic law, I don’t see a problem with applying these principles abroad, assuming one of the general extraterritorial application principles (US citizens, intent to impact the US, etc., etc.) otherwise applies.

“assuming the decision is right”

And it may not be, although I have a hard time generally expecting the judiciary to limit their power.

“the question remains what it means to “act in concert” — a concept that arises out of “privity”.”

Granted. FRCP 65(d) does no more than include what was traditionally thought to include being in privity with the enjoined. I concede the speech infringement questions are tricky.

My point was, and is, that there does exist a theory, accepted at least in broad outlines by at least two circuit courts, that would allow jurisdiction over everyone who learns of the order and is not a radical expansion of existing law. That is, I can see the people moving for a preliminary injunction as having a Rule 11 basis for their arguments.

On Leman I fear I was too terse. The reason the order follows D around the country is that the court had personal jurisdiction over him at the time it issued the order — and it keeps it for purposes of subsequent enforcement. Once we’ve established the initial personal jurisdiction, it doesn’t matter where he is. So I don’t think the Leman case tells us much that’s relevant here.

As regards my (1), I don’t see any sign of a Lanham act claim, nor indeed can I figure out how a plausible one could be made on the facts: Wikileaks’s use appears non-commercial. If I had to guess it’s a trade secrets claim, or there’s a California privacy statute. Or the Alien Tort statute. Which means I don’t think that we can necessarily assume a statute with national jurisdiction. The court really was negligent in not spelling this out, even (especially?) in an ex parte proceeding.

As regards (4), the Supreme Court has been very clear in a number of cases in the last few years that we should not apply US (statute) law extraterritorially unless Congress was clear that this was its intent. I think the lower courts are learning to be reluctant to do this.

But I do accept, and thank you for, your final point: there is a theory that could justify this.

The second order is a much broader gag order that enjoins everyone sued by the plaintiffs  wikilieaks, everyone connected by the parties, ten John Does, their ISP, lawyers, and anyone working in concert with them, and all others who receive notice of this order (!) and orders them not to do any of the following,

displaying, posting, publishing, distributing, linking to and/or otherwise providing any information for the access or other dissemination of copies and/or images of the JB Property and any information or data contained therein, including on [listed websites or other websites they control]

And you provided a link to:

Document 51 “Order To Seal Selected Evidence Exhibits Filed In Support Of Application For Temporary Restraining Order and Order To Show Cause Re Preliminary Injunction”

I’ve got nothing left to add to the original topic, but did want to leave 2 more relevant cases:

Sisneros v. Nix, 884 F.Supp. 1313 (S.D.Iowa 1995) (stating that if Arizona non-party officials knowingly acted in concert to violate an order, the court would have the power to impose contempt sanctions)

and

Chicago Tribune Co. v. U.S. Dept. of Health & Human Services, 1999 WL 299875 (N.D.Ill. 1999) (Rule 65 . . . embodies the common law principle that courts have the inherent authority and jurisdiction to enforce its judgments which cannot be negated or circumvented by nonparties who are outside the forum state.)

I followed the assorted arguments until the “Bush bash” …which was not only political cant but historically inaccurate. Every president in the last 50+ years assembled a Justice Dept (at least the appointive positions) to favor the incumbent President’s desires. Some even went as far as nepotism.

“One of the sadder consequences of the Bush years is going to be the ongoing consequences of the politicization of the justice department for years to come. If your first concern when appointing a judge is to find a party hack you are going to end up with a lot of seriously incompetent judges.”

Oh, PUH-LEEZE! You just nullified any sense you made in the previous paragraphs. If you want serious people -who’ve actually been paying attention since JFK was elected- to think you just fell off the political turnip truck in 2000, just keep on posting that sort of drivel. This is serious stuff, and you’re Clintonizing it!

Bottom line to a lay observer is this case certainly seems to skirt the ‘rule of law’ process.

Why does the court have jurisdiction over the underlying issue at all? A Swiss bank with a Cayman Islands branch versus an organization apparently not based in the United States. Dynadot appears to be the only US organization involved.

For a more complete discussion of the outer limits of “those aiding and abetting those enjoined”, some may be interested in a brief EFF filed on this issue last year in a case involving the leak of sealed documents relating to Eli Lily’s drug, Zyprexa. In particular:

As the Second Circuit has recognized, Rule 65(d) codifies the well-established principle that, in exercising its equitable powers, a court cannot lawfully enjoin the world at large. People of N.Y. v. Operation Rescue Natl, 80 F.3d 64, 70 (2d Cir. 1996) (quoting J. Learned Hand in Alemite Mfring Corp. v. Staff, 42 F.2d 832, 832 (2d Cir. 1930)); accord Regal Knitwear Co. v. N.L.R.B., 324 U.S. 9, 14 (1945) (recognizing F.R.C.P. 65(d) as an expression of common law doctrine defining scope of a courts equitable powers). Accordingly, in order for a nonparty to be bound by an injunction, that entity must either aid and abet the defendant or be legally identified with it. Paramount Pictures Corp. v. Carol Publishing Group, Inc., 25 F.Supp.2d 372, 374 (S.D.N.Y. 1998); accord Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969) ([A] nonparty with notice cannot be held in contempt until shown to be in concert or participation with a party); People of N.Y. v. Operation Rescue, 42 F.3d at 70 (injunctions reach a nonparty only where the nonparty abets or is legally identified with a party). A courts injunctive authority does not extend to nonparties who are acting independently, even where they may share the same purpose as a party, or where their acts may cause the same harm. See Alemite, 42 F.2d at 833 (Thus, the only occasion when a person not a party may be punished, is when he has helped to bring about, not merely what the decree has forbidden, but what it has the power to forbid, the act of a party.); Paramount Pictures v. Carol Publishing, 25 F.Supp.2d at 374-76 (court could not enjoin nonparty distributors of infringing books, despite likelihood of further infringing dissemination by distributors, because distributors were acting independently).

On the issue of what constitutes “acting in concert” under Rule 65(d), Fred von Lohmann is right.

Merely “violating the order with knowledge and some piece of evidence that the violation was intentional” is *not* sufficient, contrary to what Richard Campbell suggests.

However, there is authority for the proposition that nonparties who are not acting in concert with one of the named parties can be enjoined if they actively obstruct the implementation of a prior order. US v. Hall , 472 F.2d 261 (5th Cir. 1971). How that would play out in this situation, I don’t know.